Is the law on social media a bad joke? Index at the Crown Prosecution Service

I spent the morning at the Crown Prosecution Service’s offices in London, taking part in a round table discussion on guidelines for prosecuting offences committed on social media and emphasising recent prosecutions impact on free speech.

The consultations, chaired by DPP Keir Starmer — the most senior prosecutor in England and Wales — are taking place in a week when social media prosecutions are very much in the news. On Monday, Matthew Woods was sentenced to 12 weeks in prison for unpleasant, distasteful remarks on Facebook about missing Welsh schoolgirl April Jones. On Tuesday, Azhar Ahmed was given community service and a £300 fine for suggesting — again on Facebook — that British soldiers should burn in hell.

Index condemned these prosecutions and that of Paul Chambers, whose quip that he would blow Doncaster’s Robin Hood airport “sky high” landed him in deep trouble before the Lord Chief Justice ruled that his joke should be taken as just that.

It’s clear to many that there is a problem with the law and social media, in particular the use of Section 127 of the Communications Act, which states that a person is guilty of an offence if she “sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.”

At the meeting today, the DPP seemed to share Index’s unease with the use of this law, pointing out that its genealogy dates back to the 1930s, and laws to protect telophone operators from abuse.

This was certainly encouraging to hear. But Starmer was keen to point out that prosecutors can only work within the existing laws — it is up to others to change the law.

What was not so encouraging was his view of the Lord Chief Justice’s opinion offered in the Twitter Joke Appeal.

In his ruling (par 28), Baron Judge commented that “Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it…” should not be interfered with by the Communications Act

Many of us had hoped that this ruling would set a precedent, or at least provide guidance for police and prosecutors in future cases. But when I raised this with the DPP today, he suggested that he did not feel that the Lord Chief Justice had any intention of that principle being extended beyond the specifics of the Twitter Joke Trial.

To me this seems odd, as it is clearly a comment on the broad purpose of the Communications Act.

This point can be stressed when the CPS launches its public consultation in November.

On a slightly more positive note, the DPP was willing to entertain the idea that “not intended to be taken seriously” could be seen as a mitigating factor in decisions on whether to prosecute.

There were some other notable aspects in the meeting.

As Dan Sabbagh has reported and I can confirm, the DPP seems very keen on greater involvement/responsibilty for Internet Service Providers in policing content. But given the broad nature of the term “service provider”, this could prove difficult to pin down (as a representative of the Internet Service Providers’ Association pointed out).

The DPP also was keen to look into the distinction between a “victim” and an “offended bystander”, in cases where endless retweets and media attention can suddenly escalate a mere tweet into a national news story.

It’s hugely important for anyone who uses the web but especially those with a Facebook or Twitter account that the CPS gets this right. The future of free speech is at stake.

10 Comments

LCJ’s remarks that you raised with Starmer would be regarded as obiter, or not binding in law. Had LCJ wanted to he could have made that statement more forcefully, so sadly I think the DPP may be right. What’s worse is that the mens rea get out clause in paragraph 38 doesn’t fit neatly with “grossly offensive”. A person who is intending a joke is very unlikely to have menace in mind unless the joke is at the expense of another person. However, a person who is joking could very well and often does have offensiveness in mind. Where a message is seen to be grossly offensive, that might be enough. I’m beginning to think that Chambers v DPP is not really so useful after all.

Another set of cases worthy of mention in this context are the ‘Ched Evans Rape Case Tweeters’. The CPS has just announced that prosecutions are to go forward under the SOA in cases which mentioned the victims name.

This is… odd, as the language of the act and the intent of parlt. when it was passed make it clear that it was written and intended to apply only to the mainstream media (TV, radio, newspapers) under editorial control. In fact there’s a HoC library document describing how the Act is to be interpreted which says:

“Anonymity works by making it a criminal offence for the media to reveal the complainant’s identity or any information that might lead to the complainant being identified. The prohibition kicks in as soon as the complaint is made and lasts for the whole of the complainant’s lifetime. The law does not prevent complainants from being named in court, nor is there any restriction on their being named in discussions other than in the media.”

Go and read the text of the Act, and attempt to comprehend how it can be applied to an individual making a tweet – which (to me at least) is very clearly the electronic equivalent of ‘gossip’ – which those who draughted the Act were wise enough not to attempt to legislate against! I think the CPS are on a very sticky wicket.

Stumbled across your page via twit. As an advocate for free speech (note I am an American). I was shocked to read in your blog about people being sent to jail for just poor taste in jokes or opinion. Britain is a police State – but most of your citizens just don’t know it or embrace the idea of controls on speech.

Really superb article that was! Actually i also read again on that and I have lot of things about Social Media which I didn’t know before. So thanks for this constructive one and hopefully I will get more like this. Thanks

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